- 21 - Second, eligibility for relief under section 530(a)(1) requires that the taxpayer have a reasonable basis for not treating the service provider in question as an employee. This requirement may be established by the particular facts and circumstances of the case or by reference to one of the three “safe harbors” described in section 530(a)(2). We recognize that the Congress intended that “this reasonable basis requirement be construed liberally in favor of taxpayers.” H. Rept. 95-1748, 1978-3 C.B. (Vol. 1) 629, 633. However, it has been held that an S corporation’s treatment of its president as a shareholder, rather than as an employee, was unreasonable within the meaning of section 530 where the president “was, for all practical purposes, the central worker for the taxpayer.” Spicer Accounting, Inc. v. United States, 918 F.2d 90, 95 (9th Cir. 1990). There the Court of Appeals concluded that “it is clear that Mr. Spicer failed to satisfy this [reasonable basis] standard, however liberally construed.” Id. Similarly, because Mr. Barron was “the central worker” for petitioner and provided substantial services, and further because sections 3121(d)(1) and 3306(i) unambiguously state that a corporate officer is an employee, we conclude that petitioner’s treatment of Mr. Barron was unreasonable. Petitioner relies on Durando v. United States, 70 F.3d 548 (9th Cir. 1995), in support of its treatment of Mr. Barron. ThatPage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
Last modified: May 25, 2011